LETHBRIDGE & TAYLOR - [2019] FamCAFC 34

FAMILY COURT OF AUSTRALIA

LETHBRIDGE & TAYLOR

[2019] FamCAFC 34

FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Where the mother sought to adduce further evidence – Where the evidence which the mother argued was given to the Court at the hearing is that which formed the basis of her application to adduce further evidence in the appeal – CDJ v VAJ (1998) 197 CLR 172 considered – Where the evidence would facilitate the correction of an error – Application allowed.

FAMILY LAW – APPEAL – PARENTING – Where the mother sought to re-open the parenting proceedings following her compliance with final orders made in 2014 – Where the mother was invited to compile the relevant documents establishing her compliance and hand them to the primary judge’s associate following the hearing – Where the Court record does not reveal those documents ever having been received either as evidence or as part of the correspondence file – Where the mother swears to having supplied the documentation to the primary judge’s associate – Where the primary judge found there was no evidence of the mother’s compliance – Where the primary judge was not satisfied of a sufficient change in circumstances – Rice and Asplund (1979) FLC 90-725 considered – Where it is accepted that the further evidence may have impacted upon the findings made by the primary judge and may have led to different orders – Where error is established – Appeal allowed.

Family Law Act 1975 (Cth) ss 69ZN(4), 69ZN(7), 69ZQ, 69ZX(3), 97(3)

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Re F Litigant in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
Taylor & Lethbridge [2014] FCCA 2669

APPELLANT:

Ms Lethbridge

RESPONDENT:

Mr Taylor

FILE NUMBER:

BRC

4768

2012

APPEAL NUMBER:

NOA

2018

DATE DELIVERED:

28 February 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

18 January 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

29 June 2018

LOWER COURT MNC:

[2018] FCCA 1735

REPRESENTATION

FOR THE APPELLANT:

Unrepresented

FOR THE RESPONDENT:

No Appearance

it is ordered that

The Respondent be granted leave to rely on his Outline of Argument dated 15 January 2019.
The Application in an appeal to adduce further evidence be allowed.
The appeal be allowed.
The orders made by Judge Spelleken on 29 June 2018 be set aside.
The proceedings be remitted to the Federal Circuit Court of Australia for rehearing.
Each party bear their own costs of and incidental to the appeal.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lethbridge & Taylor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading LETHBRIDGE & TAYLOR

Details

AGLC: LETHBRIDGE & TAYLOR [2019] FamCAFC 34
Case: [2019] FamCAFC 34
Decision Date: 28 February 2019

CaseChat Overview and Summary

Lethbridge & Taylor was a case before the Family Court of Australia concerning a dispute over parenting arrangements and compliance with court orders. The mother sought to adduce further evidence in support of an appeal against a decision made in 2014. The legal issues the court had to address included whether the mother's assertion of having provided evidence to the court was correct and whether the court should allow the appeal based on the potential impact of this evidence.

The court examined the mother's claims that she had provided evidence to the primary judge, including documents related to her compliance with certain orders. The mother swore in an affidavit that she had provided this evidence to the primary judge's associate. However, the court record did not indicate that this evidence had been received or considered. The court noted that the mother's evidence, if true, could have impacted the primary judge's findings and potentially led to different orders. The court considered that the mother's failure to provide evidence of her mental health compliance, as required by a specific order, was a significant issue. The court relied on the case of CDJ v VAJ to determine that the mother's evidence would facilitate the correction of an error, thereby allowing the application for further evidence.

Based on the court's reasoning, the appeal was allowed. The court accepted that the mother's evidence, if it had been properly adduced and considered, could have influenced the primary judge's decision. The court acknowledged that the primary judge's decision did not reflect the mother's compliance and there was a sufficient change in circumstances to warrant a reconsideration of the parenting arrangements. The court found that an error had occurred due to the absence of the mother's evidence in the primary judge's consideration. The court ordered the matter to be remitted to the primary judge for reconsideration in light of the new evidence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Similarly:[21]In relation to the mother’s mental health, I note that in this application as in the previous application, the mother’s [sic] fails to provide any evidence of her having attended upon a psychiatrist for the purposes of adhering with Order 11 of the final Orders which as mentioned earlier is a precursor to the start of her supervised time. (Emphasis added)[21] At [12]. At the heart of this appeal and the application to adduce further evidence within it, the mother asserts that she did adduce such evidence. An assertion by a party that evidence has been adduced should be capable of immediate confirmation or rebuttal. In this case, that is not so. The mother swears, in an affidavit read in her appeal, that she did in fact provide evidence to the Court which was illustrative of her having attended upon a psychiatrist who was satisfied of currently sound mental health and evidence which was, potentially at least, capable of satisfying the Court of compliance with order 11 of Judge Lapthorn’s orders. The evidence which the mother says was given to the Court is that which now forms the basis of her application to adduce further evidence in the appeal. The Court record, however, reveals no such evidence having been tendered or received. As might be anticipated, the circumstances in which the mother says the evidence was provided to Judge Spelleken are unusual. In her affidavit, the mother swears, at paragraph 10, that the documents were “tendered to the associate”. The transcript of the hearing before Judge Spelleken[22] reveals the following exchange which occurred after her Honour had heard submissions and indicated that judgment would be delivered in the following week. In light of the mother’s assertions, the passage should be quoted in full:[23]HER HONOUR: I don't need to hear from you, Mr [Taylor]. I will deliver a judgment at 2.15 next Wednesday. You don't need to come down. The – I will put together the reasons once I know what I'm going to do. I'm not sure what I'm going to do at the moment and they will be sent to you and Mr [Taylor] in the mail.[MS LETHBRIDGE]: I’m sorry, your Honour. I do have a lot of other evidence. I’ve got documentary evidence I could put in. I mean, all of this which I talked about in my affidavits - - -HER HONOUR: What do you mean, documentary evidence?[MS LETHBRIDGE]: I mean – I suppose – well, evidence – examples of emails, other correspondence, domestic violence orders, notes from the police, etcetera. In the last 12 months, the domestic violence order which [Mr Taylor] put onto me has been breached three times by me, apparently, because I have been doing everything I can reasonably do to communicate with [Mr Taylor] to facilitate the minimum contact with [X] which he has been denying us.HER HONOUR: Well, Ms [Lethbridge], what – you say you’ve got documents there. This is your application. It’s incumbent upon you to put the documentation before the court. You don’t – I mean, the application you filed way back in August of last year, so it has been before the court for a good nine months. So why haven’t you put the documents before me before now?[MS LETHBRIDGE]: I’m sorry, your Honour. I guess I’m still a learn and I’m waiting for the direction from the court to put those things in. I didn’t realise that I had liberty to put those in.HER HONOUR: What kind of things are there?(As per original)[22] Transcript 6 February 2018 p. 6 lines 7–10.[23] Transcript 6 February 2018 p 5 line 41 to p. 6 line 24.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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